NOTES ON THE

DRAFT MENTAL HEALTH BILL

Professor Anselm Eldergill

 

This paper was drafted for the Institute of Mental Health Act Practitioners, in order to assist the Institute with its submissions on the draft Mental Health Bill.

Passages which were not incorporated in IMHAP’s submission are marked in red.

Each of the following headings refers to a theme on which the Committee has indicated it particularly wishes to receive evidence:

 

 

§1 THEME — BASIC PRINCIPLES

The Committee has indicated that it wishes to receive evidence on the following theme: ‘1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable?’

The Government has not set out a set of ‘unambiguous basic principles’.

It has stated that the existing Act does not adequately protect people from ‘the significant risk posed by a minority of patients’, and that it ‘remains based on treatment in hospital, and too often has allowed severely ill people outside hospital to drift out of contact with services.’

However, the proportion of violence in society attributable to mental illness remains low, and people are better protected from violence of this kind than from most other kinds. Violence has much more to do with education, upbringing, alcohol, drugs and testosterone than mental illness. That is not to say that it is appropriate to detain and treat people in these classes under mental health laws.

The principles upon which any new legislation is based should include those set out in Appendices:

• A (‘Principles of Mental Health Legislation’)
• B (‘The Principles of Legislating for Risk’) and
• C (‘Legislating for Personality Disorder’).

§2 THEME — DEFINITION OF MENTAL DISORDER AND RELATED DEFINITIONS

The Committee has indicated that it wishes to receive evidence on the following theme: ‘2. Is the definition of mental disorder appropriate and unambiguous?’

The definition of ‘mental disorder’ must be understood together with the definitions of ‘medical treatment’ and ‘hospitals’, and it is necessary to consider their combined effect.

The approach taken in the Bill is essentially a reworking of the consultation document on ‘dangerous severe personality disorder’ that was published by the Home Office and the Department of Health in July 1999.

In this document, the two departments advocated that risk alone, as well as mental disorder and criminal punishment, can justify detention. As a result, consideration was given to detaining such people in ‘third units’, in essence adult secure accommodation of the kind presently provided for some behaviourally-disturbed children.

The ‘third-unit’ option seems to have been abandoned, probably because it was thought that indefinitely detaining non-offenders in civilian accommodation risks infringing the European Convention on Human Rights.

Article 5(1) permits the detention of convicted persons and those of unsound mind in appropriate facilities (prisons and hospitals, respectively), but does not in clear terms permit the detention of citizens who have not offended merely because there is a risk they will do so in future.

Detention in secure non-hospital accommodation rather rules out pleading mental disorder, and a need for treatment, as the justification, and nor can punishment or lawful sentence be pleaded, because the individuals are not serving a term of imprisonment.

Probably for these reasons, therefore, the Government seems to have retreated, at least for the present, to the justification that such people are mentally disordered: they require medical treatment in hospital or medical treatment under supervision in the community.

Meaning of ‘mental disorder’
Key Point The definition of ‘mental disorder’ is too broad.	Further Explanation Unlike the present Act, the Bill does not provide that no one may be dealt with as mentally disordered by reason only of promiscuity, immoral conduct, sexual deviancy or dependence on alcohol or drugs. Thus, one is entitled to assume that the Government intends that it will be lawful to compulsorily treat individuals on the sole ground that their behaviour is of such a kind. See Clause 2(5).
Meaning of ‘medical treatment’
Key Points The definition of ‘medical treatment’, which includes education and work training, is too broad.	Further Explanation References in the Bill to ‘medical treatment’ are references to treatment for mental disorder provided under the supervision of an ‘approved clinician.’ The term ‘treatment’ includes education, work training, and training in social skills. See Clause 2(7).
	Consequently, a person who is drug-dependent and whose behaviour is anti-social and alarming may be said to have a mental disorder that warrants providing medical treatment, in the form of work training or social skills training, under psychological supervision.
Meaning of ‘a hospital’
The definition of ‘a hospital’ includes private houses that provide compulsory education, work training or social skills training under psychological supervision to people with personality, alcohol or drug dependency problems.	What constitutes a hospital is broadly defined: see Clause 2(3). A private establishment, such as a converted Edwardian house, is a hospital if its main purpose is to provide medical treatment for mental disorder to persons subject to Part 2 or 3. Because people with ‘personality disorders’, substance abuse problems or sexual deviancy may now be categorized as having a mental disorder, and education or training under psychological supervision constitutes medical treatment, an establishment offering such a service is a ‘hospital’. Provided it is suitably registered, it may detain people who meet the conditions for compulsion.
Combined effect of the new definitions
The consequence is that social interventions that most people do not think of as medical treatments, given to individuals who most people do not regard as mentally disordered, constitute medical treatments for mental disorder.	Defining anti-social people as mentally disordered, supervised social interventions as medical treatments, and establishments which detain such people or provide social services as hospitals, enables adult secure accommodation to be dressed up for European Convention purposes as hospital treatment for persons of unsound mind.

§3 THEME — CONDITIONS FOR COMPULSION and DETENTION

The Committee has indicated that it wishes to receive evidence on the following theme: ‘2. Are the conditions for treatment and care under compulsion sufficiently stringent? Are the provisions for assessment and treatment in the community adequate and sufficient?’

For obvious reasons, this part of the paper is divided into three parts:

·         The conditions for short-term compulsion (up to 72 hours)

·         The conditions for compulsory assessment and treatment under Part 2

·         The conditions for compulsory treatment under Part 3 (criminal provisions)

The new short-term powers
Key Points It is constitutionally inappropriate that a doctor may detain someone s/he believes requires assessment in the community.	Further Explanation The Bill provides that a doctor may authorise the detention for up to 72 hours of an informal in-patient who appears to require, not detention in hospital, but assessment in the community. See Schedule 6.
It is constitutionally inappropriate that who is authorised to detain an informal patient is not defined and left to regulations.	A ‘person falling within a description described … in regulations’ may likewise detain such a person for up to six hours: See Schedule 6. Who is authorised to use this power will therefore be determined by the Minister after Parliament has enacted the legislation. It may be that the power will remain reserved to suitably qualified nurses. However, the Bill does not require this.
It is constitutionally inappropriate that a single doctor may authorise a citizen’s compulsory admission and detention if the approved mental health professional accompanying her/him is not also of the opinion that detention is appropriate or that there is any urgent necessity for this.	The new ‘section 4’ emergency hospital admission procedure is set out in Clause 17. It provides that the patient shall be admitted to hospital if the doctor — rather than both professionals, as at present — determines that the person’s assessment is an urgent necessity, and that awaiting a second medical examination would involve undesirable delay.
Because the professional opinion is evenly divided, the citizen’s detention is not then founded on reliable evidence, which is a Convention requirement.	This is unsatisfactory. Although the approved mental health professional’s opinion is that the relevant conditions for compulsion are met, it may also be their opinion that admission and detention are inappropriate. If so, the individual’s detention is then founded on one medical opinion with which the approved professional disagrees, and that possibly from a general practitioner, or a doctor with no previous acquaintance of the patient. Furthermore, even if the approved professional believes that detention is appropriate, s/he may not agree that detention or assessment is urgently necessary, or that it is undesirable to await the second medical examination, for example from a consultant psychiatrist.
The conditions that govern when a warrant to remove a citizen to a place of safety may be issued require amendment, in order to bring them into line with practice.	The new section 135(1) power (Warrant to remove a person to a place of safety) is set out in Clause 227. It adopts the existing statutory grounds and, because they remain unchanged, so they remain defective. Whether a person can care for themselves, or is being ill-treated or neglected, is not the same issue as whether the only way in which a statutory assessment can be undertaken is by forced entry and removal. Although this is the usual reason for using the power in practice, it continues not to be a ground for issuing the warrant.
It is constitutionally inappropriate to use mental health legislation to allow constables to remove citizens who are drug or alcohol dependent from their homes without any need for a warrant. We are concerned that the power may be misused.	The most controversial short-term provision is the urgent removal power in Clause 228. Necessarily, this power, as with all of the others, extends to people who are alcohol or drug dependent, or ‘sexually deviant’. In other words, they too are liable to be removed to a place of safety by a constable acting without a warrant.
The ‘relevant conditions’ for compulsion under Part 2
The relevant conditions for compulsion must be understood in the context of the statutory definitions of ‘mental disorder’ and ‘medical treatment’	The statutory criteria for compulsion under the civil provisions in Part 2 are called ‘the relevant conditions’. See Clause 9. The conditions for compulsion must be understood in the context of the very broad definitions of ‘mental disorder’ and ‘medical treatment’ referred to above.
The meaning of the word ‘lawfully’ in Clause 9(5) needs to be clarified.	In most cases, compulsion under Part 2 is only permissible if ‘medical treatment cannot lawfully be provided to the patient without him being subject to the provisions of this Part.’ The word ‘lawfully’ has been added here, and it is ambiguous. Is it intended to mean that the person cannot be ‘sectioned’ if s/he consents to informal treatment, or does it mean that an incapacitated person cannot be ‘sectioned’ if s/he can be treated instead under the Mental Capacity Bill or the common law doctrine of necessity? This is an important point that needs to be clarified.
In contrast to the present Act, the Bill allows for the compulsory treatment of people who are not treatable. If they are not treatable why force treatment on them?	The Bill abolishes the existing ‘treatability test’. In other words, where a person has a learning disability or personality disorder, it will no longer be a condition of longer-term compulsory treatment that treatment is likely to alleviate their condition or prevent its deterioration. The equivalent condition in the draft Bill is that ‘appropriate medical treatment is available’. This ‘appropriate’ medical treatment may, of course, consist of nothing more than education or work training not provided under any medical supervision. ‘Appropriate’ is a very general word, and the Bill does not say that treatment is only appropriate if it is likely to alleviate the patient’s condition or prevent its deterioration.
Because what constitutes ‘medical treatment’ may be extended by making regulations that extend who is an ‘approved clinician’ under the Bill, so the relevant conditions for compulsion may be extended by regulations.	Because ‘treatment’ only constitutes ‘medical treatment’ if it is ‘provided under the supervision of an approved clinician’, and who is or may be approved will be determined by the Secretary of State after the legislation has been passed, it can be seen that the grounds for compulsion can periodically be varied by secondary legislation. This is unsatisfactory, and may be unlawful. For example, because it enables the conditions for compulsion to be varied periodically by Ministers without going back to Parliament.
The criteria for detention in hospital under Part 2
Provided a citizen meets the relevant conditions for compulsion, the Bill leaves to regulations the issue of whether s/he should be liable to be detained in a hospital. This is constitutionally inappropriate, and is unlikely to comply with the European Convention.	The new Clause 15(2) provides that, ‘If the patient falls within a description specified by the appropriate authority in regulations, each of the examiners must, in carrying out an examination, also determine whether it is appropriate for the patient to be detained in a hospital while an assessment of him is carried out.’ It is therefore proposed that Parliament should be silent as to the circumstances in which citizens will be liable to detention, imposing no conditions or safeguards, entrusting instead the ‘liberty of the subject’ to the executive and regulations made by the Minister from time to time.
The Bill provides that a citizen may be detained even though the medical evidence is evenly divided as to the need for detention. Again, we are sure that this does not comply with the European Convention, which requires that detention is founded on reliable evidence.	Clause 16(5) then provides that provides that a person who meets the conditions for compulsion may be detained in hospital if an approved mental health professional and one doctor consider it ‘appropriate’, notwithstanding that the other doctor, who may have special expertise in psychiatry, considers it to be inappropriate. Thus, the individual’s detention is authorised even though the medical opinion is evenly split, with the expert opinion being against detention. The test for detention is as subjective as such tests can be. Not ‘is the individual’s mental disorder sufficiently severe to warrant deprivation of liberty?’, or ‘is depriving this individual of their liberty justified by the risk of harm?’, but ‘does a professional person think it is appropriate to detain them while an assessment is carried out?’
Admission to hospital of non-resident patients
In certain circumstances, the Bill authorises the detention of a citizen to be founded upon a single medical opinion, and this an opinion that may conflict with the determinations previously made by three practitioners. Again, having regard to Convention requirements, the lawfulness of this must be doubtful.	The Bill provides that the consultant of a non-resident patient may sign a statutory form, upon the completion of which the patient may be conveyed to hospital and detained there: See Clauses 28, 48 and 51. Thus, although detention at the time of the original examination is only possible if an approved mental health professional agrees it is appropriate, once that examination has been completed the patient’s detention may be founded on one medical opinion — an opinion which conflicts with, and overturns, the decision of three examiners or a tribunal as to its inappropriateness. Reexamination by three examiners would be preferable.
Imposing conditions on non-resident patients
The conditions which may be imposed on a non-resident patient are not properly specified.	The conditions that may be imposed on a non-resident patient include those specified in Clause 15(4). The use of the word ‘include’ leaves open, and unclear, what other conditions may lawfully be imposed, and this is unsatisfactory.
The conditions for compulsion under Part 3
The conditions for compulsion under Part 3 are too lax. It suffices that the offender has a mental disorder (e.g. substance dependency) of a nature that warrants providing medical treatment under psychological supervision (e.g. social skills training) and that this ‘appropriate treatment’ is available.	The conditions for imposing longer-term compulsory treatment under the criminal provisions in Part 3 are much laxer. It suffices that the individual has a mental disorder of a nature or degree that warrants providing medical treatment to them, and that appropriate medical treatment is available (Clause 116).
	This is a matter that requires the most careful consideration, given the broad definitions of mental disorder and medical treatment, and the number of people with personality or substance-dependency problems who appear in court.

 

 

§4 THEME — SEPARATION OF POWERS AND THE EXECUTIVE

The Committee has indicated that it wishes to receive evidence on the following theme: ‘7. Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practices right?’

Balance between legislation and regulations
Key Points The drafting of the Bill is ‘back-to-front’ and reserves constitutional issues affecting ‘the liberty of the subject’ to regulations made by the Secretary of State.	Further explanation The drafting of the Bill is ‘back-to-front’. It is silent about matters that one would expect to find defined by Parliament, such as the grounds upon which a citizen can be detained, and prescriptive about matters that are probably not intended to be legally enforceable, e.g. the numerous requirements to consult and notify people and to keep the status of patients under review.
	As already noted, who may detain an informal in-patient for up to six hours, when a person is liable to detention for assessment under Part 2, and who is an ‘approved clinician’ (and, therefore, what constitutes medical treatment) are all matters left to regulations. The Bill even states that the Secretary of State may prescribe matters that must be dealt with in tribunal applications (see, e.g., Clause 39), a function that surely belongs to the Lord Chancellor.
	It also enables the Secretary of State to regulate the giving of ECT without the usual certificates (see Theme 5).

§5 THEME — SAFEGUARDS CONCERNING FORCED MEDICATION AND ECT

The Committee has indicated that it wishes to receive evidence on the following theme: ‘Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery?’

Safeguards concerning medication given without consent, etc
Key Points The Bill abolishes the existing right of patients to an independent, binding, second-opinion concerning the appropriateness of the medication they are forced to take. This seems contrary both to common-sense and recent court decisions, so that it is doubtful whether it complies with the European Convention.	Further Explanation Fairness and commonsense dictate that decisions to authorise treatments that can be given by force should be subject to safeguards.
	The Government’s intention appears to be that anti-psychotics and other drugs given for mental disorder constitute ‘Other medical treatment’, and will be governed by Clauses 198 to 200.
	Clauses 199 and 200 provide that the consent of a patient who is liable to assessment or treatment under Part 2 or 3 is not required in respect of any medical treatment of such a kind provided it is described in her/his care plan (or care plan as approved by the tribunal with modifications).
The Expert Panel should be given this function to perform.	Because a tribunal can only modify the medical treatment in a care plan with the patient’s consultant’s consent, this amounts to abolishing the right that patients detained for treatment presently have to a binding second-opinion on their drug treatment from an independent consultant psychiatrist appointed by the Mental Health Act Commission. The Bill could, but does not, transfer this protective function to the new Expert Panel.
Administering medication without consent in ‘hospital settings’
The broad definition of what constitutes a hospital leads to a correspondingly broad list of places where citizens may be held down and given medication by force.	The Bill allows for administering medication without consent in a hospital (Clause 198). Medication may be given without consent in an NHS clinic, in small ‘mental nursing homes’ that are willing to provide this service, and small private establishments that constitute ‘hospitals’ for legal purposes.
Administering medication without consent in non-hospital settings
If one takes ‘patient consent’ to mean that that the patient freely consents to treatment then it is inevitable that drug treatments will often be given to people in their own homes without their consent. After all, if they accept the need for treatment there is no need for it to be given under a compulsory order.	In practice, it is likely that consultants or tribunals will impose a requirement or condition that the patient takes prescribed medication, in addition to a requirement that s/he attends hospital as required. It will be pointed out that there will be no need to require the patient to attend hospital, or to convey them there, if an injection can be given at home. The patient has this option. It may be objected that any medicines given in such circumstances are not given with consent, for if the person truly consented a compulsory treatment order would be unnecessary.
	Against this, the procedures for patients liable to compulsory treatment under the 1983 Act provide for medicines being given with or without consent. The current statutory position is therefore that a patient may give a valid consent to medication notwithstanding that a refusal may result in administration by force. If this is the case, home treatment and assertive outreach teams will be giving medication within the home to people who would refuse it if free to decide. To the non-lawyer, this amounts to administering medication without the person’s consent outside hospital settings.
Safeguards concerning ECT given without consent, etc
It will be too easy in practice for consultants to by-pass the protective scheme set out for ECT.	The safeguards concerning ECT, though modified, remain unsatisfactory. They are set out in Clauses 177 to 190.
	Under Clauses 182 to 184, a patient may effectively be given a whole course of ECT if their consultant certifies at the outset of the course of treatment that the treatment is immediately necessary to alleviate serious suffering. That being so, it is unclear how often consultants will decide that it is necessary to apply to a tribunal for authorization.
	Here again, the Secretary of State has reserved to himself the power to regulate the scheme although, by constitutional convention, all significant encroachments on the liberty and security ‘of the subject’ should be determined by Parliament and entrenched in statute law.

§6 THEME — SAFEGUARDS AGAINST ABUSE

The Committee has indicated that it wishes to receive evidence on the following theme: ‘6. Are the safeguards against abuse adequate?’

Many safeguards against the poor or inappropriate use of compulsion are abolished. In addition to those already mentioned: The Bill:

·         fetters the new Mental Health Tribunals;

·         revokes the powers of a patient’s nearest relative;

·         provides that the guidance in the Code of Practice may be qualified;

·         abolishes the statutory duty to provide long-term after-care;

·         revokes the discharge powers of NHS bodies and local authorities;

·         may endanger professional independence;

·         does not provide for an independent, standalone, Mental Health Commission.

Mental Health Tribunals
Key Points Tribunals should continue to have a discretionary power to discharge people from compulsion.	Further Explanation The powers of the new tribunals are limited. In particular, they have no discretion to discharge a person who meets the statutory conditions for compulsion. Here too, practitioners are prohibited from taking into account matters not referred to in the Government’s test. As a result, more patients will be subject to perennial compulsion, because some people with chronic illnesses never satisfy the statutory test for discharge.
	That is not to say that they ought not to be discharged once they are functioning at their optimum level, provided that neither they nor anyone else is at significant risk.
The Bill should provide that a tribunal must release a citizen from detention unless it is satisfied that clear grounds which Parliament has determined justify depriving a citizen of her/his liberty are met.	Whether a patient who meets the conditions for compulsion is actually released from detention is left entirely to the tribunal’s discretion, there being no grounds which qualify when detention is or is not lawful.
If citizens who have not committed an offence are to be subject to restrictions of the kind imposed on dangerous offenders then similar protections should be put in place.	A notable feature of the new scheme is that people who have not committed an offence may be placed under restrictions on discharge, transfer and leave of the kind now imposed by the Crown Court on offenders who pose a risk of serious harm to the public.
Where a person applies to be discharged from short-term compulsory assessment, it is undesirable that a tribunal should be empowered not only to refuse their application to be released but also to extend the period of compulsion by up to six months. Because the rules will no doubt provide that where two applications are outstanding they may be heard together, it is better to leave it to the clinical supervisor to decide whether to apply for a further order.	Where a person who has been detained for up to 28 days asks the tribunal to review the grounds for the detention, it can extend the period of compulsion by up to six months. Necessarily, many patients will be wary of challenging their detention, given the purpose and possible consequences of independent review. This wariness is likely to be reinforced by the fact that their perception of tribunals will change. Instead of being the independent body that can order their release, it will be seen as the authority that imposes long-term compulsion. It must still be doubtful that these provisions satisfy Article 5.
It is a matter of concern that a tribunal may authorise a person’s further detention for up to eight weeks when it has just determined that s/he does not satisfy the relevant conditions for compulsion, let alone detention.	Where a detained Part 2 patient does not meet the relevant conditions for compulsion in the community, the tribunal must in some cases authorise her/his detention for a further eight weeks. See Clauses 63 and 64.
Nearest relatives and nominated persons
Key Points A patient’s spouse or partner should retain their existing power to object reasonably to admission to hospital. Why get rid of the right to lodge a reasonable objection?	Further Explanation A person’s nearest relative has several important powers under the present Act, two of which protect patients against the inappropriate use of compulsory powers. The Bill abolishes the nearest relative as a legal entity, and with it the family’s right to these protective powers.
That person should also retain the existing power to discharge from detention a patient who is not likely to act in a manner dangerous to her/himself or others. If the patient has no spouse or partner, any relative who is her/his ordinary carer (as defined in the Bill) should also have these rights. A scheme of this kind still enables necessary treatment to be given as a non-resident patient.	The existing powers recognise the importance of the family in people’s lives, and the need to limit the circumstances in which the state may interfere with individual and family life. A balance is achieved between the state’s claim to provide protective compulsory care and the right claimed by families to care for their loved ones, and to cope with and manage behaviour that mostly affects only them.
It is questionable whether the ‘nominated person’ is given a sufficiently useful role to justify all of the consultation and notification requirements.	A new ‘nominated person’ replaces the nearest relative. However, this person has but one power, which is to apply to the tribunal for the patient’s discharge.
The functions of independent MHA Advocates include explaining things such as the requirements imposed on the patient — who are they advocating for — and it is not clear how their independence of the detaining authority (who may well be paying them) is to be guaranteed.	Patients and nominated persons have a right to help under the Bill’s advocacy provisions. However, their statutory role is as much concerned with explaining the consultant’s treatment, and why the patient must comply with it, as it is with protecting or promoting the patient’s legal rights. Such advocates will be appointed by the NHS — and probably often by the detaining trust in practice — and the detaining trust may refuse the advocate access to the particular patient’s records. See Clause 247.
The rights given to carers by the Bill are welcome, but they are carers’ rights, not patients’ rights.	Carers who provide regular and substantial care must also be consulted about some decisions. However, by definition, these rights are carers’ rights, and of course their advice may be that the patient should remain subject to detention or compulsion.
Qualified Code of Practice
The Secretary of State has excluded her/himself from having to comply with good practice requirements set out in a Code of Practice, and that it is considered inappropriate in certain circumstances to say what is good practice.	The new Code of Practice may provide that one or more general principles shall not apply in circumstances in which its application would be ‘inappropriate’, or in relation to specified decisions or persons. A new sub-clause now also provides that certain matters are excluded from the remit of the code. Almost all of these matters relate to functions of the Secretary of State. In other words, the Secretary of State will not himself be subject to the Code of [Good] Practice. See Clause 1 and Schedule 1.
Abolition of section 117
As a general principle, where a person has been so ill as to require long-term detention and compulsory treatment in a psychiatric unit, it a good thing that the after-care authorities should be under a duty to provide them with such after-care as is reasonably necessary to minimise the risk of relapse and readmission. It is unfair to require people to pay for treatment they are compelled to receive.	The Government indicated in the White Paper that patients would not be charged for services they are compelled to receive. Clauses 53 and 68 deal with free care services before and after discharge. Patients who are required to reside in accommodation that is their ordinary place of residence may be charged all or part of the cost of that accommodation.
Powers of hospital managers and others
The managers of a hospital should retain the power to discharge a person detained by them if they are of the opinion that the statutory conditions which make detention lawful are no longer met.	Hospital managers, Health Authorities, NHS trusts, and local authorities all lose their powers to discharge individuals from compulsion. Only the patient’s clinical supervisor or the tribunal may discharge a patient. The ‘independent’ MHA advocacy service is not an adequate substitute for the protection presently afforded to citizens by co-opted independent managers.
Professional independence
It is a matter of concern that all three examiners may be employed by the prospective detaining authority.	The existing separation of powers, which requires that the applicant is independent of the doctors recommending compulsion, is abolished. Subject to regulations, in future examinations may be conducted by three health service colleagues employed by the detaining body. See Clause 14.
Abolition of Mental Health Commission
	This constitutional issue is so important that it is dealt with under a separate major heading immediately below.

 

 

 

 

 

§7 THEME — Safeguards — Abolition of Mental Health Commission

The Committee has indicated that it wishes to receive evidence on the following theme: ‘6. Are the safeguards against abuse adequate?’

When vulnerable people are subject to detention or compulsory medical treatment, the law has usually sought to protect them by requiring that a specialist, independent, legal body visits them periodically, in order to ensure that these powers are not being abused.

Agreed international standards now require governments to provide for this: See, e.g., Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, adopted by United Nations General Assembly resolution 46/119 of 17 December 1991. Inspections must be sufficiently frequent to ensure that the conditions, treatment and care of patients comply with international principles.

The Mental Health Act Commission presently performs this essential function. However, the Bill provides for the Mental Health Act Commission’s abolition, and it also abolishes the visiting function.

The Government proposes that henceforth the Commission for Healthcare Audit and Inspection (CHAI) will exercise some functions in relation to the new Act: see Clauses 256 to 277 and 289 to 292. However, the allocation of some functions to a large agency like the Healthcare Commission fails to recognise the importance of having an independent specialist inspectorate/agency to ensure that the Act is being properly applied and administered for the benefit of those individuals subject to it.

Functions of CHAI [Healthcare Commission]

CHAI has eight main functions under the Bill:

1 To give information and advice

But not advice to patients subject to compulsion, Mental Health Tribunals, courts or the Secretary of State (in relation to the exercise of her/his functions).

2 To gather and publish information about the use of the new Act

This function is self-explanatory.

3 To keep under review the exercise of relevant functions in relation to relevant patients

But there is no duty to visit patients subject to compulsion. This is, however, the way in which the 1983 Act ensures that the MHAC reviews that way in which powers and duties are being exercised in practice.

The Home Secretary has excluded from review by CHAI the way in which her/his functions are exercised.

The term ‘relevant patients’ excludes persons removed to a place of safety, and informal in-patients who have been detained so that they can be examined, and it may also exclude people who are examined by two doctors and an approved mental health professional under Part 2.

4 To investigate the exercise of relevant functions ‘in relation to relevant patients if it considers it necessary or expedient to do so’

The phrase ‘in relation to relevant patients’ [plural] suggests that this is a general power, not a power to investigate a particular patient’s case. This interpretation is reinforced by the fact that a copy of any report that is published must be made available to the Secretary of State and/or NHS trust, but not to any patient or patients whose cases form part of the investigation. According to the Bill, a patient who is affected by the investigation may inspect the report at CHAI’s offices — which is impractical if s/he is detained — or obtain one by post upon payment of a reasonable fee.

As before, there is no power to investigate the use of the short-term powers referred to above, and the Home Secretary has excluded the way in he exercises his functions from investigation. This is relevant to decisions concerning restricted patients (leave, transfer, recall to hospital) and those affected by the transfer from prison to hospital provisions.

5 To investigate the death of a ‘relevant patient

This discretionary power applies only to ‘relevant patients’. Regulations may provide that the relevant hospital publishes an action plan.

6 To investigate complaints made by or in respect of relevant patients

But only if regulations so provide. Furthermore, such regulations may require a patient who complains, or about whom a complaint is made, to pay a fee specified in the regulations. The regulations may specify who may make a complaint (and therefore who may not); complaints that need not be considered; and matters excluded from consideration.

7 To correct any minor defects in statutory documents

There is a limited power to correct any document that is found ‘to be in any minor respect incorrect or defective’.

8 To review decisions to withhold a patient’s correspondence

Where requested by the patient. This function is presently performed by the MHAC, and is in similar terms.

CHAI’s functions under other statutes

CHAI is also taking over the work of the Commission for Health Improvement, the Audit Commission’s work on value for money, and the National Care Standards Commission’s remit to inspect private hospitals.

It is to be responsible for inspecting NHS hospitals, the Government’s star rating system, the imposition of special measures for failing organisations, the licensing of private hospitals, the conduct of NHS value for money audits, the scrutiny of patient complaints, and now way in which some Mental Health Act functions are performed.

Keeping compulsory treatment powers under review thus forms a relatively small part of an extensive remit, the remainder of which is concerned with ensuring that trusts implement the Government’s NHS Plan and modernisation agenda. Here, it may be observed that the attention of public bodies which monitor standards focuses on one of two things:

·                     Quality standards (setting, monitoring and enforcing quality standards; patient safety; implementing service reforms designed to improve quality).

·                     Legal standards (including the maintenance of ethical standards that may not be legally enforceable).

Almost all of the public bodies that the Department of Health has created, and for which it is responsible, exist in order to ensure or improve the quality of care. They have been created, not to ensure compliance with constitutional rights, but to drive forward the Government’s NHS agenda. In 1999/2000, the DoH’s 64 non-departmental and non-provider public bodies employed 14,780 staff and received Ł715m in public funding. The Mental Health Act Commission employed 32 of the 14,780 staff, and received just over Ł3m (or 0.4%) of this Ł715m.

Summary

Getting rid of a small, standalone, semi-independent, specialist Mental Health Commission will do enormous harm.

A much better funded specialist Mental Health Commission, with a clearer and more focused remit, would be a better and more positive development, rather than hiving this function off to a large Healthcare Commission whose remit is far too broad and politically sensitive to do justice to this relatively small and vulnerable group of patients. These patients are citizens who are being detained, and in most cases medicated against their will.

A separate Commission is essential, given the number and range of people who will be liable to compulsion; the fact that compulsion will now take place in the community; the position of incapacitated people; and the overall reduction in safeguards for those subject to compulsion.

The danger is that the constitutional imperative will be consumed by the larger political imperatives if the MHAC becomes one small division within a super-Commission dedicated to monitoring compliance with the NHS programme. When CHAI budgets are set, ‘mental health legal money’ will compete with NHS performance-targets, and be diverted to the inspection of acute care — in the same way that funds announced for mental health initiatives are now sometimes diverted by Health Authorities to reducing waiting list times.

It must also be doubtful whether any merger will achieve its stated aim of reducing NHS bureaucracy. Visiting patients, and ensuring that they are being treated kindly and lawfully, does not increase regulation. It is not a regulatory exercise. CHAI does operate as a regulatory body, since it is a paper-heavy organisation concerned with general management systems.

Furthermore, merging ‘quangos’ so that they exercise their functions as divisions of one ‘super-quango’ does not reduce regulation. This requires reducing the range of functions performed. Furthermore, one can only successfully join institutions that perform similar functions.

Recommendation

There should continue to be an independent, standalone, Mental Health Commission, the functions of which comply with agreed international standards. This Commission should perform the following functions:

1                    To review the care and treatment of patients, and to visit them.

2                    To review the exercise of the powers and duties in the Mental Health Act and the Human Rights Act 1998 in respect of patients.

3                    To exercise protective functions in respect of persons who may be incapable of adequately protecting their persons or their interests.

4                    If appropriate, to discharge from detention or compulsion a patient who is being detained or subjected to compulsory assessment or treatment unlawfully (other than patients whose detention, assessment or treatment has been authorised by a tribunal).

5                    To inquire into any case where it appears there may be ill-treatment, deficiency in care or treatment, or the improper detention, compulsion or supervision of any person who may be suffering from mental disorder.

6                    To advise the Secretary of State and specified agencies on matters relating to the Act.

7                    Where appropriate, to undertake formal inquiries, for example after a homicide.

8                    To publish an annual report and a code of practice.

9                    To investigate and prosecute offences under Part 11 of the new Act.

10                To review decisions to withhold detained patients’ correspondence or to restrict or interfere with their communication with other persons.

11                To review, and where necessary terminate, solitary confinement (seclusion) and mechanical restraint.

In 1982, Parliament amended the last Mental Health Bill by strengthening the role of what was to be the new Mental Health Act Commission. It is to be hoped that it will again perform a similar valuable service. If it does, there is much to be said for placing the Mental Health Commission on the same footing as the Health Service Commissioner: that is, accountable to and funded by Parliament, or (if this is not possible) accountable to and funded by the Department of Constitutional Affairs.

§8 THEME — OMISSIONS

The Committee has indicated that it wishes to receive evidence on the following theme: ‘Are there any important omissions in the Bill?’

Seclusion and mechanical restraint
Key Points The Bill should regulate the use of seclusion and mechanical restraint	Further Explanation For reasons that are obvious, the Bill should regulate the use of seclusion (solitary confinement) and mechanical restraint.
Rehabilitation provisions
The Bill does not include any rehabilitation provisions	The Bill does not include any rehabilitation provisions of the kind set out in the Mental Health (Northern Ireland) Order 1986. If a person’s detention or compulsion does not exceed 28 days, s/he should not be required to state in any future employment or insurance application that s/he has been ‘sectioned’.
Offences
Who has the duty to investigate and prosecute offences under the new Act should be made clear.	The Bill seems to make no provision.

§9 THEME — COMPLIANCE WITH THE HUMAN RIGHTS ACT

The Committee has indicated that it wishes to receive evidence on the following theme: ‘9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act?’

Non-compliance issues
Key Points Some of the Bill’s provisions in relation to detention and compulsory treatment are likely to breach the European Convention.	Further Explanation These matters have been dealt with above.

§10 THEME — BALANCE BETWEEN COLLECTIVE AND INDIVIDUAL RIGHTS

The Committee has indicated that it wishes to receive evidence on the following theme: ‘3. Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?’

Whether the Bill achieves the right balance?
Key Points No.	Further Explanation Patients are themselves members of the public, so the law must ensure that members of the public are not unnecessarily detained, and also that they are protected from those who must necessarily be detained.
	The Bill removes many important protections against abuse that either have no impact on the risk of self-harm or harm to others (such as the abolition of the Mental Health Act Commission and its visiting function, of second-opinions concerning antipsychotic drugs, of clear criteria for detention) or only a minimal impact that is outweighed by the protection afforded to citizens (such as the abolition of managers’ powers). It is this fact, perhaps more than any other, that has given the impression of callous disregard and caused such opposition to the Department of Health’s proposals.
	Even if people are inadequately protected from the actions of people who have a mental disorder, this may not be a fault of our laws. It may be due to insufficient resources, poor government, poor service management, poor risk management, faulty practice, a faulty understanding of the law, or simply part of the human condition. In other words, a limitation that is to a significant extent replicated across a world full of different mental health laws.
	Implicit in any discussion about the need for new laws is the assumption that modifying their content modifies outcomes. However, the extent to which this is true is unclear. Legislation is actually a relatively ineffective means of modifying behaviour. Although it can provide a framework for managing violence associated with mental disorder, it cannot significantly reduce these risks. That this is so is clear from the many homicide inquiry reports. Had the professional carers foreseen what was about to happen, they already had power under the present law to intervene. That they did not intervene was due, not to any lack of legal powers, but to the fact that they did not foresee what was about to occur. Yet no amount of new legislation can improve foresight.

§11 THEME — INTEGRATION WITH THE MENTAL CAPACITY BILL

The Committee has indicated that it wishes to receive evidence on the following theme: ‘8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill introduced in the House of Commons on 17 July 2004?’

Mental Capacity Bill and common law powers

Key Points The Bill does not refer to the Mental Capacity Bill or to common law powers. That being so, it must be the case that it is not integrated.

Further Explanation The Draft Bill does not refer to the Mental Capacity Bill introduced in the House of Commons on 17 June 2004. It is clearly important that considerable attention is given to the extent to which the various powers, duties and rights concerning incapacitated patients set out in the Mental Health Bill, the Mental Capacity Bill and the common law conflict. The interplay between the different statutory and common law schemes is a potential minefield that could take years to resolve, and be very expensive for healthcare providers.

§12 THEME — PRACTICALITY OF THE PROPOSALS

The Committee has indicated that it wishes to receive evidence on the following theme:

‘4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, efficient, and clear?

5. Is the proposed institutional framework appropriate and sufficient for the enforcement of measures contained in the draft bill?’

10. What are likely to be the human and financial resource implications of the draft bill? What will be the effect on the roles of professionals? Has the Government analysed the effects of the Bill adequately, and will sufficient resources be available to cover any costs arising from implementation of the Bill?’

Having regard to these requirements, and the many demands already made on the time of Mental Health Act administrators, doctors and other health service professionals, many of the provisions may be unworkable.

Drafting ambiguities and errors
Key Points The Bill would benefit from being redrafted.	Further Explanation The Bill contains many drafting ambiguities and errors, and it is certainly highly repetitive and unnecessarily complicated. It would be sensible for the Department of Health to seek further legal advice.
Implementation issues
If the Bill is viable, it will be necessary to allow those who must implement it a lengthy induction period before it comes into force.	The time allowed should take the following considerations into account: The extension of compulsion to community settings. The extension of the population liable to compulsion.
	The transitional provisions in Schedule 14.
	The need for services that today are not involved in compulsory procedures to familiarise themselves with practice in this area, e.g. psychology departments and substance-dependency services.
	The need for hospitals to recruit additional staff in order to comply with the Bill’s extensive consultation and notification requirements.
	The anticipated increase in the number of tribunal applications (applications for discharge, assessment orders, treatment orders, further orders, applications relating to transfers or leave, applications to vary orders).
	The need for the tribunals to reorganise and for the Legal Services Commission to make the necessary arrangements for patients to be legally represented.
	The requirement that NHS trusts determine whether a citizen appears to meet the relevant conditions for compulsion every time it is requested to do so by any person.
	The requirement that NHS trusts arrange for every person who appears to meet these conditions to be examined by two doctors and an approved mental health professional.
	The duty to record the many kinds of determinations provided for by the Bill and the reasons for them.
	The need to organise the necessary nominated person and advocacy services.
	The need to put into place systems for approving clinicians and mental health professionals.
	The many formal requirements imposed on the managers of hospitals, e.g. to ‘secure’ that clinical supervisors make tribunal applications when required to do so by the terms of the Bill, to appoint clinical supervisors, to secure that patients are assessed and that care plans are prepared, to require patients to comply with conditions imposed on them, to deal with requests for determinations, to register patients, to record changes in the status of resident and non-resident patients, to process tribunal applications, to liaise with the new tribunals and the Expert Panel, to furnish reports and other prescribed information, etc.
	The many formal duties imposed on clinical supervisors, e.g. to review and amend patients’ care plans, to make tribunal applications when required by the Bill, to keep the legal status of all patients under review, to comply with the consent to treatment provisions, etc.
	The need to retrain all doctors, social workers, nurses, managers and other mental health professionals who will be involved in implementing the new Act. They will need to be familiar with the Act, regulations, statutory forms, rules, Code of Practice, and the guidance issued by the Department of Health, Home Office, CHAI and Mental Health Tribunals.
	The need to make arrangements for the inevitable increase in NHS litigation, and to allow the NHS and independent hospitals time to agree satisfactory legal cover and insurance.
Training
Training is a crucial issue. Substantial time and money will need to be set aside for training on the Bill.	It will be necessary to retrain all those doctors, social workers, nurses, hospital managers and other mental health professionals who will be involved in implementing the new Act. Services that today are not involved in compulsory procedures will need to familiarise themselves with practice in this area, e.g. psychology departments and substance-dependency services. They will all need to be familiar with the Act, regulations, statutory forms, rules, Code of Practice, and official guidance.
Sharing of information
The clauses that deal with ‘information sharing on request’ (Clauses 286 to 288) are extremely unhelpful.	Having set out what seems to be a new set out statutory duties concerning the sharing of information, this part of the Bill then ends with, ‘Nothing [above] authorizes the provision of information if such provision would be prohibited or restricted under or by virtue of any enactment or by any rule of common law.’ In other words, the poor practitioner is told to decide for her/himself whether any of the ‘duties’ in the Bill is a new duty or a breach of confidentiality.

§13 CONCLUDING REMARKS

The Government has attempted to address the concern expressed by many people about the criteria for civil compulsion contained in the original Bill, and the introduction of new safeguards for children aged under 16 is a further welcome development.

Unfortunately, in most other respects the contentious provisions of the original Bill remain unaltered. Indeed, the relevant conditions aside, the new Bill is if anything less satisfactory in terms of the constitutional balance it strikes between those persons in positions of authority and those subject to their authority.

Of special concern are the abolition of a specialist Mental Health Commission, the way in which central government departments have excluded themselves from the Code of Practice and other safeguards, the fact that matters such as the criteria determining whether a citizen is detained are left to regulations, the length of the Bill, the quality of the drafting, the practicality of the proposals and the complexity and expense involved in administering it.

§14 CONTACT DETAILS

All correspondence and enquiries concerning this paper should be addressed to:

Professor Anselm Eldergill Solicitors Chambers 169 Malden Road London NW5 4HT

Tel: 020 7284 1006 x28 Fax: 020 7916 2553 Mobile: 0797 119 8742 E-mail: medicolegal@email.com www.mentalhealthlawyers.com

 

 

 

 

 

 

 

 

The Principles of Mental Health Legislation Anselm Eldergill

 

1.                  It is unsatisfactory to seek to determine principles by reason only, without regard for human experience of the world within which principles are formulated and applied. Our value judgments are judgments about experienced objects.

2.                  There are many reasons to limit state intervention in people’s lives: errors in law spread their negative effects throughout the nation as opposed to individual errors that are limited in scope; the damage of erroneous laws affect citizens more than legislators, who are thus less inclined to repeal them; it takes longer to repair the damage done by legislation than the damage done by individuals by their own private choices; because of the constant watch of critics, politicians are less inclined to publicly admit error and undo the damage done; politicians are more inclined than citizens to make decisions based on political gain and prejudice, rather than principle.[1]

3.                  The British constitution separates powers, the aim being to keep executive powers in check and under proper scrutiny, and so to secure good government. This is necessary because the ‘whole art of government consists in the art of being honest’,[2] and ‘it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected.’[3]

4.                  Promoting liberty, protecting individuals from harm caused by those at liberty, and those not at liberty from abuse by those who are, alleviating suffering, and restoring to health those whose health has declined, are all legitimate objectives, in that they reflect values embraced by virtually all members of our society.[4]

5.                  We are, however, ‘faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others.’[5] Whether individuals ‘should be allowed certain liberties at all depends on the priority given by society to different values, and the crucial point is the criterion by which it is decided that a particular liberty should or should not be allowed, or that its exercise is in need of restraint.’[6]

6.                  When enacting mental health legislation, Parliament has generally sought to erect a balanced legal structure that harmonises three things: individual liberty; bringing treatment to bear where treatment is necessary and can be beneficial; the protection of the public.[7] Those we describe as ‘patients’ are themselves members of the public, so that the law must seek to ensure that members of the public are not unnecessarily detained, and also that they are protected from those who must necessarily be detained.

7.                  The use of compulsion has been permitted when significant harm is foreseeable if an individual remains at liberty. Its purpose is to protect the individual or others from those risks that arise when a person’s capacity to judge risks, or to control the behaviour giving rise to them, is impaired by mental disorder.

8.                  Other risks are, constitutionally, matters for citizens to weigh in their own minds. The purpose of compulsion is not to eliminate that element of risk in human life that is simply part of being free to act and to make choices and decisions. A person who obeys our laws is entitled to place a high premium on their liberty, even to value it more highly than their health. Subject to the stated limits, people are entitled to make what others regard as errors of judgement, and to behave in a manner which a doctor regards as not in their best interests, in the sense that it does not best promote health.

9.                  This desire to determine one’s own interests is common to human beings, and so not to be portrayed as an abuse of liberty. On the one hand stands liberty, a right which Parliament and the law should always favour and guard, on the other licence, a wilful use of liberty to contravene the law, which the law must of necessity always punish.

10.              Any power given to one person over another is capable of being abused. No legislative body should be deluded by the integrity of their own purposes, and conclude that unlimited powers will never be abused because they themselves are not disposed to abuse them.[8] Mankind soon learns to make interested uses of every right and power which they possess or may assume.[9]

11.              This risk of abuse is multiplied if the individual is not free to escape abuse, is incapacitated or otherwise vulnerable, or their word is not given the same weight as that of others. Children and adults with mental health problems are particularly at risk, and the law has usually afforded them special protection.

12.              This protection involves imposing legal duties on those with power, conferring legal rights on those in their power, and independent scrutiny of how these powers and duties are exercised. The effectiveness of such schemes depends on whether, and to what extent, they are observed.

13.              This is a matter of constitutional importance, for the observance of legal rights and the rule of law are the cornerstones of all liberal democracies. The rule of law ‘implies the subordination of all authorities, legislative, executive [and] judicial … to certain principles which would generally be accepted as characteristic of law, such as the ideas of the fundamental principles of justice, moral principles, fairness and due process. It implies respect for the supreme value and dignity of the individual.’[10]

14.              In any legal system, ‘it implies limitations on legislative power, safeguards against abuse of executive power, adequate and equal opportunities of access to legal advice and assistance, … proper protection of the individual and group rights and liberties, and equality before the law … It means more than that the government maintains and enforces law and order, but that the government is, itself, subject to rules of law and cannot itself disregard the law or remake it to suit itself.’[11]

15.              In framing these principles and laws, Parliament has sought to be just, justice being ‘a firm and continuous desire to render to everyone that which is his due.’[12]

16.              If new laws are necessary, they should impose minimum powers, duties and rights; provide mechanisms for enforcing duties and remedies for abuse of powers; be unambiguous, just, in plain English, and as short as possible.

17.              Because there is a long record of experimentation in human conduct, cumulative verifications give these principles a well-earned prestige. Lightly to disregard them is the height of foolishness.[13]

 

 

 

 

 

 

The Principles of Legislating for Risks Anselm Eldergill

 

It is impossible for mental health services to be totally safe, and Governments should take account of the natural limits of practice before they introduce legislation:

·         Risk cannot be avoided and even a very low risk from time to time becomes an actuality. However careful the assessment, it is inevitable that some patients will later take their own lives or commit a serious offence.

·         Any decision to detain an individual, or to compel them to have treatment, involves balancing competing risks, of which the risk that others may suffer physical harm is but one. For example, detention and compulsory treatment risk loss of employment, family contact, self-esteem and dignity; unnecessary or unjustified deprivation of liberty; institutionalisation, and disabling side-effects.

·         The purpose of compulsory powers is not to eliminate that element of risk in human life which is a consequence of being free to act, and to make choices and decisions; it is to protect the individual and others from risks that arise when a person’s judgement of risk, or their capacity to control behaviour associated with serious risk, is significantly impaired by mental disorder.

·         Good practice relies on good morale and a feeling amongst practitioners that they will be supported if they act reasonably; it is unjust to criticise them when decisions properly made have unfortunate, even catastrophic, consequences.

·         The occurrence of such tragedies does not per se demonstrate any error of judgement on the part of those who decided that allowing the patient their liberty did not involve unacceptable risks.

·         An outcome is often the result of a complex series of events, and the choice of one particular causal factor may be arbitrary.

·         Small differences in one key variable can result in vastly different behaviours and outcomes: just as a sudden change in the physical state of water into steam or ice occurs with the rise or fall of temperature beyond a critical level, so the addition of a small additional stress on an individual may have a profound effect on their mental state or behaviour.

·         All violence takes place in the present, and the past is a past, and so unreliable, guide to present and future events.

·         Understanding the situations in which a person has previously been dangerous, and avoiding their repetition, can give a false sense of security about the future. Although life is understood backwards, it must be lived forwards, and the difference between explanation and prediction is significant: explanation relies on hindsight, prediction on foresight, and the prediction of future risk involves more than an explanation of the past.

·         Unless the individual’s propensity for violence has a simple and readily understandable trigger, it is impossible to identify all of the relevant situations; some of them lie in the future, and will not yet have been encountered by the patient.

·         Predictions are most often founded not on fact but on ‘retrospective predictions’ of what occurred in the past (‘retrodiction’).

·         A risk can in theory be measured and is the basis of actuarial prediction — in theory because in practice all of the critical variables never are known. The risk depends on the situation but the situations in which the patient may find themselves in the future can only be speculated upon.

·         Because future events can never be predicted, it is important to put in place an adequate system for supervising an individual whose own safety may potentially be at risk or who may pose a threat to the safety of others. However, this approach is not fail-safe: it is based on the assumption that most attacks do not erupt like thunderstorms from clear skies. In reality, as with weather systems, only the pattern of events for the next 24 hours can usually be forecast with some accuracy; and contact with supervisors is less regular.

·         All human beings, regardless of their skills, abilities and specialist knowledge, make fallible decisions and commit unsafe acts, and this human propensity for committing errors and violating safety procedures can be moderated but never entirely eliminated.

Whether our laws are at fault

Even if people are inadequately protected from the actions of people who suffer from mental disorder, this may not be a fault of our laws. It may be due to insufficient resources, poor government, poor service management, poor risk management, faulty practice, a faulty understanding of the law, or simply part of the human condition. In other words, a problem or limitation that is to a significant extent replicated across a world full of different mental health laws.

Implicit in any discussion about the need for new laws is the assumption that modifying their content modifies outcomes. However, the extent to which this is true is unclear. Legislation is actually a relatively ineffective means of modifying behaviour. Although it can provide a framework for managing violence associated with mental disorder, it cannot significantly reduce these risks. That this is so is clear from recent homicide inquiry reports. Had the professional carers foreseen what was about to happen, they already had power under the present law to intervene. That they did not intervene was due, not to any lack of legal powers, but to the fact that they did not foresee what was about to occur. Yet no amount of new legislation can improve foresight. Nor can it improve insight, for ‘he that complies against his will, Is of his own opinion still.’[14]

The key to progress must rest with improving government, resources, diagnostic tools, treatments and training, and, most fundamentally of all, with education:

‘I believe that education is the fundamental method of social progress and reform. All reforms which rest simply upon the law, or the threatening of certain penalties, or upon changes in mechanical or outward arrangements, are transitory and futile.... But through education society can formulate its own purposes, can organize its own means and resources, and thus shape itself with definiteness and economy in the direction in which it wishes to move.... Education thus conceived marks the most perfect and intimate union of science and art conceivable in human experience.’[15]

 

 

 

 

 

Legislating for Personality Disorder Anselm Eldergill

 

Who is mentally disordered?

It is necessary to define or describe who within a population is mentally disordered before it is possible to estimate the level of violence for which they are collectively responsible.

If persons with anti-social or psychopathic personalities are categorised as being mentally disordered, it is necessarily true that other people are relatively more at risk from the mentally disordered than if they are excluded. Furthermore, if our definition of a psychopathic disorder requires abnormally aggressive or seriously irresponsible conduct, as it does under the 1983 Act, it is inevitable that people within the definition will often have been violent. Such a concept is bound to produce such a statistical finding, the whole aim being to detain those who, though not mentally ill, put others at significant risk. Conversely, if such people are excluded, the level of violence committed by what may be called the anti-social element in society will be that much greater, and the contribution of the mentally disordered that much less.

The definition of mental disorder in the 1983 Act includes people categorized as having a psychopathic disorder, but does not include people by reason only of promiscuity, immoral conduct, sexual deviancy or dependence on alcohol or drugs. It is clear, however, from the draft Bill that the Government considers that such persons have a mental disorder. By implication, it counts them as part of the group of mentally disordered persons who commit violence, violence from which the public are inadequately protected. It will later be argued that this all-inclusive approach is artificial and unjustified ….

Whether the human personality is a proper subject for medicine

The Home Office and the Department of Health have for some time now been considering the introduction of new laws aimed at protecting the public from individuals who have a ‘dangerous severe personality disorder’.

In July 1999, the two departments published a consultation document, setting out proposals intended to ensure ‘that DSPD people are kept in detention for as long as they pose a high risk. The approach the Government has developed … involves the idea of detention based on the serious risk such people present to the public.’[16]

The Government was therefore advocating that risk alone, as well as mental disorder and criminal punishment, can justify detention. As a result, consideration was given to detaining such people in ‘third units’, in essence adult secure accommodation of the kind presently provided for some behaviourally-disturbed children.

This is a quarantine argument; one which holds that, subject to problems of identification, the civil detention of dangerous people is justified even if they have not committed any violent offences. The contrary argument is that the civil detention of dangerous non-offenders is never warranted, because it is a fundamental principle that citizens who obey our laws have a right to be at liberty. To imprison a person who has not yet committed the offence one fears is the criminal justice system of Alice’s Wonderland: ‘”No, no!” said the Queen. “Sentence first — verdict afterwards.”’

The ‘third-unit’ option seems to have been abandoned, probably because it was thought that indefinitely detaining non-offenders in civilian accommodation risks infringing the European Convention on Human Rights. Article 5(1) permits the detention of convicted persons and those of unsound mind in appropriate facilities (prisons and hospitals, respectively), but does not in clear terms permit the detention of citizens who have not offended merely because there is a risk they will do so in future. Detention in secure non-hospital accommodation rather rules out pleading mental disorder, and a need for treatment, as the justification, and nor can punishment or lawful sentence be pleaded, because the individuals are not serving a term of imprisonment.

Probably for these reasons, therefore, the Government seems to have retreated, at least for the present, to the justification that such people are mentally disordered: they require medical treatment in hospital or medical treatment under supervision in the community.

It is, no doubt, with the anti-social in mind that the criteria for compulsion, and various key statutory terms — such as mental disorder, medical treatment, hospital and clinical supervisor — are defined as they are. Indeed, the proposals for the compulsion of civilians seem designed to deal with people who habitually threaten, harm or alarm others, whatever the cause. It is in effect a ‘well dodgy’ Act, designed to sweep from the streets, or to supervise and control, anyone whose conduct causes the public significant concern, but whose behaviour — in the absence of actual evidence or proof of serious offending — does not allow the police or the courts to place them in custody.

Much of the recent debate has centred on whether or not the NHS and other agencies are resourced to provide such an extensive service. However, this assumes that such people may properly be dealt with on the basis that their conduct is evidence of a medical condition that requires medical intervention. The arguments for not permitting this are compelling.

Kurt Schneider defined personality as, ‘the unique quality of the individual, his feelings and personal goals; the sum of his traits, habits and experiences and the whole system of relatively permanent tendencies, physical and mental, which are distinctive of a given individual.’[17] In short, personality is what makes one individual different from another. It is who I am.

This observation immediately gives rise to two important questions: Are people said to have disordered personalities injured, ill or diseased? And, is the human personality a proper subject for medicine?

The evidence suggests that present medical interventions have, like liberal prison regimes, the reformation of the individual as their aim. This is unacceptable because the proper function of medical science and practice is to treat individual suffering attributable to disease or injury, not to alleviate the suffering of society; and, in the field of mental health, to treat those diseases or injuries which interfere with the development or expression of an individual’s personality, not to reform her or his personality by reference to some social or political norm.

The mental state and behaviour of an individual said to have a personality disorder is abnormal, in the sense that it deviates from the social norm, but normal in relation to their own individual norm: that is, it is consistent with what is known about their development and functioning over time. Here then, the individual is only abnormal by reference to a social norm, and such a deviation cannot be said to constitute a disease because mere social deviation is not evidence of biological disorder. This requires evidence of injury or deviation from the individual norm. If there is no evidence of either then one is simply confusing individuality with ill-health: treating as biologically abnormal an undiseased, uninjured, creature living its natural life, so that medicines are pesticides.

The motivation for this social control is transparent. People want to live in a cultivated society, and they cultivate society in much the same way they cultivate nature in their gardens. This involves eradicating disease in the garden, but also weeding it and controlling pests, that is containing or destroying organisms which are doing nothing more than expressing their natures. There is nothing unique in this, for the same power is claimed over animals and unborn life, and most other things that interfere with personal survival or fulfilment. But it is why CS Lewis wrote that, ‘To be cured against one's will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles and domestic animals. But to be punished ... because we have deserved it ... is to be treated as a human person made in God's image.’[18]

Although many people would not today understand the issue in religious terms, the argument retains its inner strength: there is more human dignity in punishment than in medicalizing anti-social or violent behaviour.

This is an uncomfortable message for an age that is uncomfortable with the notion of punishment, the more so when the debate involves issues of responsibility and free will, and the extent to which some people’s personalities do not enable them to refrain from anti-social behaviour. However, our conscious thinking and deciding are embodied in the workings of our brains, and consequently our behaviour is determined by our thinking and choosing. While determinism provides an explanation for our choices and actions, it is humans beings, not deterministic rules, that cause events. The fact that an individual’s personality, as determined by their genes and previous experiences, dictates the choice s/he makes does not mean that s/he has not chosen between alternatives. Furthermore, whilst not everyone has the same capacity to eschew the wrong, this does not preclude us from judging their actions, because whether an action is harmful is not affected by its antecedents. In short, our conscious decisions and actions are matters of personal choice: each chooses what suits their personality, not that of others, and must be accountable to others for their choice. The counterpart of freedom and autonomy is accountability for acts freely and autonomously done.

The view presented here therefore is that those persons presently categorized as psychopaths are not mentally disordered, and they should be excluded from mental health legislation. We are simply medicalizing ‘deviant behaviour’.[19] Believing this, there is no inhumanity in holding that they should be imprisoned if their offence and forensic history merits it. If we are satisfied that our prison system is the best that can be devised for the prevention of crime, and the reformation of the criminal, then we may rest satisfied that it is the best treatment for the sort of insanity from which criminals suffer. If, on the other hand, we are not satisfied that prisons are reformative then why this is so needs to be the principal focus of our attention.[20]

What cannot be justified are mental health or social protection laws that permit the preventive detention of law-abiding citizens who are free of injury or disease. It would be unjust to detain them for crimes they have not committed and are actuarially unlikely to commit. It would be immoral, because the old maxim that 'you shall not do evil that good may come' is applicable in law as well as in morals. It would be inutile, because any impact on the rates at which serious offences are committed is likely to be marginal. There is little gain in detaining a handful of notionally dangerous civilians each year when guilt in criminal proceedings must be proved beyond all reasonable doubt, because every year we release without penalty thousands of rapists and other violent offenders. Lastly, it would be unwise. For, when the public perceives that they are no safer despite such a reform, rather than realise and learn from their folly, they will demand that basic freedoms be further curtailed and the penalties made more severe.

Such demands misunderstand the functions of the law and its natural limits. It is not within the power of the law, given the venality of the times, to cleanse the Augean stable. As Montesquieu observed, in ‘moderate governments, the love of one’s country, shame, and the fear of blame are restraining motives, capable of preventing a multitude of crimes. Here, the greatest punishment of a bad action is conviction ... In those states a good legislator is ... more attentive to inspire good morals than to inflict penalties.’[21]

Only those who know the cost but not the value of our freedoms would embark upon such a journey. Nothing which has great value is without cost, and the value of anything is what one is prepared to sacrifice for it. The value attached to trial by one's peers is the financial cost of the jury system; the value of justice is demonstrated by a willingness to see the guilty go free rather than risk convicting the innocent; and the value of liberty is demonstrated by stoically bearing the many evils which liberty permits. If the defence of these freedoms was worth the sacrifice of millions during two wars then, unless society has become wholly degraded, it must withstand the death of a few during peacetime. Such a scheme has no utility which can justify its innate immorality and the infliction of such great injustice; and it would be highly imprudent to interfere with public liberties in the name of public safety when the necessity of such a scheme has not been firmly established.[22]

 

 

 

 

 

APPENDICES — ENDNOTES